The Animas-La Plata water project ("ALP" or "Animas-La Plata") has been on the Bureau of Reclamation's drawing board for Southwestern Colorado for over fifty years. If constructed as originally planned (in two phases) it will be enormous. Phase 1 involves construction of a large reservoir known as "Ridges Basin." The Bureau will divert 25% of the flow of the Animas River and pump it uphill 500 feet, at a cost of approximately $710 million, to fill this reservoir. This phase will require years of earthmoving to construct pumping stations, as well as miles of tunnels and pipelines. It will also cause severe and irreparable environmental damage to the Animas River, one of the last free-flowing rivers in the West. Phase 2 involves pumping water out of Ridges Basin upward, once again, to the west over Red Mesa. Some of this water will be dumped in the La Plata River to increase flows for downstream irrigation, and some will be pumped another 400 feet higher and several more miles west to irrigate what is known as the "Dry Side."

Because of opposition to the project, backers have proposed smaller versions since the early 1990s. One, "ALP-Lite," would have been only 6% smaller than the original ALP. Project proponents and the Department of Interior are allegedly working out the details of its successor, "ALP-Ultralite," in secret.1 "ALP-Ultralite" will, at the least, still require construction of Ridges Basin Reservoir. In all likelihood, this project will mirror its predecessors in size.

Originally, Animas-La Plata was proposed strictly as an irrigation project, without any reference to Ute Indian reserved water rights. Indeed, several federal water projects already exist in the area, which not only meet the Utes' water needs but have capacities greatly exceeding those needs. The Bureau of Indian Affairs built a network of ditches in the last century to irrigate the lands allotted to tribal members, and those ditches divert substantial amounts of water, with priority number 1, from the Pine River. In the early 1940's, the federal government built the Pine River Project, consisting of Vallecito Reservoir-with one-sixth of its water supply dedicated to the needs of the Southern Utes-and the Florida Project, a small portion of which serves Indian water needs.

The water from the Pine River ditches and Vallecito Reservoir is more than adequate to serve the residential needs of the Southern Ute Indians-approximately 1,300 people-as well as to irrigate 14,000 acres of land. A portion of the irrigation water2 goes unused by the Indians, however, because of the area's marginal crop yield. In fact, Vallecito Reservoir has recently been the subject of bills transferring it to private ownership, and converting its use from irrigation to municipal and industrial. Such legislation would enable the new owner, the Pine River Irrigation District, to avoid federal restrictions on such conversions.

For the Ute Mountain Utes, in the 1980s the federal government constructed the Dolores Project, one fourth of which, or 24,700 acre-feet, is for the exclusive use of that tribe. This amount of water would satisfy the residential water requirements of 123,500 people. However, the Ute Mountain Ute tribe consists of only a little over 2,000 people. Finally, Navajo Reservoir, a mainstream reservoir on the San Juan River with 1,500,000 acre-feet of storage capacity, sits adjacent to the Southern Ute Reservation and upstream of the Ute Mountain Ute Reservation. It is highly likely this reservoir also could be used to satisfy any water needs of both tribes.3

The three completed federal water projects on the Pine, Florida, San Juan, and Dolores Rivers cost about $1.1 billion in 1999 dollars, almost all of which will be paid by taxpayers, not project beneficiaries. The Utes do not use much of the water from these existing projects, nor are they able to make use of the quantities available. Thus, there is no need for yet another reservoir project in Southwestern Colorado to meet Indian needs for irrigation or domestic use, certainly not one that would cost taxpayers another $710 million, and possibly three times that if the history of overruns which have afflicted similar federal water projects is repeated.

As mentioned, when originally proposed, the purpose of Animas-La Plata was to serve Western irrigators. The Utes were not major participants. Only within the past twelve to fifteen years or so has the project become "clothed in the Indian blanket"; and, at the same time, its purpose changed from irrigation to municipal and industrial use. This "Indian blanket" has had great practical usefulness to the promoters of Animas-La Plata, who, based on lessons they learned from the Dolores Project, now advance Indian interests to justify construction of ALP. The proponents argue that the Utes have a large (unquantified) reserved water right with an 1868 priority-the date of their treaty with the United States government establishing their reservation. Due to the threat this "senior reserved water right" putatively poses to established patterns of water use among non-Indians in Southwestern Colorado, interested parties, including the tribes, the State of Colorado, the United States Departments of Interior and Justice, and numerous local governmental entities, entered into a "settlement" of the Utes' claims in water court in 1986.4 The settlement confesses the existence of an 1868 reserved water right, but subordinates it to the 1966 adjudication date of Animas-La Plata. In return for the subordination, 29,900 acre-feet of project water is dedicated to the Southern Utes, and 26,000 acre-feet to the Ute Mountain Utes, almost all of which is for municipal and industrial use specifically, which the Utes may sell for use off their reservations. The settlement was subsequently authorized by an Act of Congress in 1988,5 and decreed on stipulated motion by the Division 7 water court.6

The "Indian blanket" in which ALP is clothed has also had great political usefulness to its promoters, since no one can dispute that the history of the United States' treatment of the Utes in the last century, possibly even more than its treatment of other Indian tribes, was one of dishonor and disgrace-a greedy theft of resources accomplished under color of law. Yet one can dispute that justice requires reparation be made to the Utes for these wrongs in the form of this particular water project.

Although an agreement has been struck by interested parties in order to smooth the road for Animas-La Plata-and there are now both a stipulated water court decree and an Act of Congress enshrining that agreement-the point of this article is to show that no consideration supported the agreement. The law is clear that the Southern Utes do not have a reserved water right with an 1868 priority, and common sense dictates that a costly water project not be built to satisfy a nonexistent claim.

The United States Supreme Court has expressly held that the Ute Reservation, created in 1868, was extinguished by the Act of Congress of June 15, 1880.7 The Court interpreted that Act (which was supported by the Agreement of 1880 between the Utes and the United States government) to extinguish all "right, title, [and] interest" of the Southern Ute Tribe in the Ute reservation.8 Consequently, the Winters right9 impliedly reserved at the time the reservation was created was also extinguished.

The Supreme Court detailed the history of this forfeiture in its opinion. It begins with the creation of the reservation in 1868, when the Confederated Bands of Utes, composed of the Uncompahgre Utes, the White River Utes, and the Southern Utes, exchanged their aboriginal lands in New Mexico, Utah, and Colorado for a reservation of approximately 15.7 million acres lying wholly within Colorado. The reservation was subsequently almost severed in 1874 by the "Brunot Cession" of 3.7 million acres of the east-central portion after valuable mineral deposits were discovered there.10

In 1879, members of the White River Ute band of Utes murdered Indian Agent Meeker and others at the White River Station in Western Colorado.11 Public outcry over this incident led to the June 15, 1880 Act of Congress, terminating tribal ownership in the reservation lands.12 The Act caused the cession to the United States of all acreage not already allotted to individual Indians, "except as hereinafter provided for their settlement."13 The Supreme Court interpreted that language in examining whether the Act of 1880 actually extinguished the reservation. The Act "provided for the settlement" of the White River Utes in Utah and the Uncompahgre Utes along the Grand River, unless insufficient agricultural land was found there, in which case they would also go to Utah (which they soon did).14 As to the Southern Utes, the Act provided that they were to

remove to and settle upon the unoccupied agricultural lands on the La Plata River, in Colorado; and if there should not be a sufficiency of such lands on the La Plata River and in its vicinity in Colorado, then upon such other unoccupied agricultural lands as may be found on the La Plata river or in its vicinity in New Mexico.15

The Southern Utes thus continued to occupy the area of their former reservation known as Royce Area 617.

The United States Court of Claims, from which the appeal to the Supreme Court was taken, held that the United States, in acquiescing in the continued occupancy of Royce Area 617 by the Southern Utes, had waived its rights created in the 1880 Act "whatever [those rights] were."16 The Supreme Court reversed this holding, finding no such waiver, and expressly concluded that, despite the language, "except as hereinafter provided for their settlement," the entire reservation was extinguished in 1880.17

Although the Act of 1880 terminated tribal ownership,18 Indians could still own such former reservation land as might be allotted in severalty to individual Indians. All of the land not allotted to individual Indians-the remaining portion of the former reservation-was released and conveyed to the United States, to be held as public lands subject to disposal for the Utes' financial benefit.19

The question whether the Tribe's 1868 reserved water rights survived the extinguishment of the reservation itself must be answered in the negative. Winters v. United States held that, since the purpose of Indian reservations was to convert the Indians from a "nomadic and uncivilized people," to a settled, agricultural people,20 the government must have intended to reserve water adequate for the irrigation of reservation lands when the reservation was created. Since Winters, a reserved water right sufficient to accomplish the purposes of the reservation (including now not only Indian reservations, but other federal reservations such as reservations for forests, national parks, and the like) has been deemed vested with a priority as of the date of the reservation itself.21 Although an Indian reserved water right must be considered to have sprung into existence on the Ute Reservation as of 1868 pursuant to Winters, therefore, it was extinguished by the Act of 1880. A water right is an interest in real property. The Winters right was unquestionably included in "all the right, title, interest, estate, claims, and demands of whatsoever nature in and to the land and property"22 of the Southern Ute Tribe in their reservation, ceded in its entirety to the United States. "Where the grantor conveys all of his interest without qualification, his entire right is transferred, since the word 'interest' is regarded as the broadest term applicable to claims in and on real property, and a like rule is applicable to a conveyance of 'all right, title, and interest.'"23 Moreover, because a reserved water right is measured exclusively by the "practicably irrigable acreage" of the reservation, not by the "number of Indians,"24 as soon as there was no longer any acreage to irrigate there was no longer a reserved water right.

Two lower courts have expressly agreed with the conclusion that, upon cession of an Indian reservation to the government and opening of that land to homesteading, the Winters right is extinguished. The Ninth Circuit Court of Appeals reached this result in United States v. Anderson,25 in determining, among other issues, whether the Spokane Indian Reservation, which was ceded to the government, opened to homesteading, then subsequently reacquired by the Tribe, carried a reserved water right with an original date-of-the-reservation priority.26 The Ninth Circuit held it did not.27 The Tribe had a reserved water right, but its priority was the date of the Tribe's reacquisition of their lands.28 The court found this conclusion was required by the Supreme Court's determination, based on the Desert Lands Act, that a homesteader acquires no federal water right incident to the transfer of public lands into private ownership.29 The Ninth Circuit stated:

Application of this rule to the case before us would terminate the availability of Winters rights on those reservation lands which have been declared public domain, opened to homesteading, and subsequently conveyed into private ownership. This result is supported by the fact that Winters rights were only intended to assist in accomplishing the needs of the reservation; where the land has been removed from the Tribe's possession and conveyed to a homesteader, the purposes for which Winters rights were implied are eliminated. Therefore, a homesteader is not entitled to rely on the Winters doctrine. The appropriation doctrine will serve as the source of his water rights.

Where the homesteader has no perfected water rights or has lost rights which were perfected, there are no rights to be regained by the Indians on reacquisition of the property. This principle protects the intervening rights, if any, that may have been acquired in good faith by third party water users during the homesteading process and prior to reacquisition by the Tribe.30

The Wyoming Supreme Court followed this rule in 1995 in In re Big Horn River,31 stating:

When the Tribes ceded their land to the United States for sale, the reserved water right disappeared because the purpose for which it was recognized no longer pertained. That purpose no longer existed for lands acquired by others after they had been ceded to the United States for disposition. The effect is that the reserved water rights were eliminated as to those tracts.32

One of the appellants in the Big Horn River case argued that while Congress had the power to terminate Indian rights,33 it had not done so since its intent was not express; yet, the Wyoming court found a termination. In the Southern Ute case, not even that argument can be made since Congress did express its intent to terminate Indian rights in the Act of June 15, 1880. It was a harsh consequence for the Utes, but extinguishment of the reservation and termination of Indian rights are what the Supreme Court held Congress intended to accomplish.34 The Court was influenced by a line of court cases brought by the Utes in the 20th century, resulting in consent judgments that the Tribe had admitted constituted full compensation for their property interests which had been improperly disposed of by the government. In 1938 the federal government also restored the Tribe's as-yet-undisposed-of lands from their original reservation.

In 1950, the Confederated Bands of Utes and the United States government entered into a settlement of six cases the Utes had pending in the United States Court of Claims.35 The Utes claimed compensation for property interests which had been taken from them in violation of section 3 of the 1880 Act, which provided that the ceded lands were to be disposed of for cash only, with the proceeds applied to the Utes' financial benefit.36 The decisions in these Court of Claims cases and the history behind them-including two earlier Court of Claims decisions-are pertinent to understanding the Supreme Court decision of 1971.37

In 1909, Congress passed a jurisdictional act permitting the Court of Claims to hear the Utes' claims that the United States had failed to carry out the terms of the 1880 Agreement.38 Pursuant to that jurisdictional act, the Utes brought suit against the United States to recover the proceeds of cash sales for lands formerly part of the reservation, which had been sold as public lands without the proceeds' being credited to the Utes; and as compensation for other lands from the former reservation, which the government had set aside for its own use. In 1910, the Utes received a judgment of $3,516,231.05, representing compensation for more than 4.5 million acres.39 In 1911, they received an award of attorney fees in an amount equal to 6% of the judgment, or $210,973.86.40 More than seven million acres were still left subject to the 1880 agreement.41

After the 1910 judgment, the government disposed of additional large tracts of land still held by the United States under the terms of section 3 of the 1880 Act through entry and sale, or appropriation for its own use, without the required crediting to the Utes.42 The disposition of these lands between 1910 and 1938 thus became the subject of another suit for compensation by the Utes,43 permitted to be brought under a second jurisdictional act promulgated for that purpose.44 The parties stipulated to $6,037,567.72 plus interest for that taking.45

At that time, thousands of acres still remained undisposed of by the government. In 1934 the Secretary of Interior, pursuant to the Indian Reorganization Act of June 18, 1934,46 believed he was authorized to restore these "remaining surplus lands" to tribal ownership.47 He issued two orders dated July 17 and November 13, 1937, purporting to restore 30,000 acres adjoining "the present reservation" (now known as the Ute Mountain Ute reservation), and approximately 8,500 acres within and lying north of Township 35 N, respectively.48 However, as detailed in Confederated Bands of Ute Indians v. United States,49 the restoration of many of these lands, already included in grazing districts under the Taylor Grazing Act, "created much alarm and uneasiness among the citizens of western Colorado."50 Thus, the "Adams Amendment" was offered to the pending bill which became the Act of June 28, 1938.51 As finally passed, with the Adams Amendment, the 1938 Act provided that there was to be no restoration of any lands north of and including Township 35 N, and provided that all prior orders purporting to restore such lands were "rescinded and annulled."52 The lands including and north of township 35 were in Royce Area 616.53 On September 14, 1938, the Secretary of Interior then restored the remaining lands in Royce Area 617 to tribal ownership, an area consisting of approximately 200,000 acres, described as:

Townships 32, 33, and 34 North, Ranges 1-1/2 to 13 West, inclusive, of the N.M.P.M., in Colorado, being that area lying between the north boundary of the old Southern Ute Reservation and the south boundary of the State of Colorado and extending west from the 107th Meridian to the east boundary of the present Southern Ute Reservation [now known as the Ute Mountain Ute Reservation].54

As mentioned, the 1938 Act provided that the Utes could sue the United States for compensation for any "claims arising . . . by reason of any lands taken from them, without compensation . . . ."55 Thus, even though 200,000 acres had now been restored to them in fee, the Confederated Bands of Utes brought suit in the Court of Claims. Case No. 45585 sought compensation for the taking of the undisposed-of land lying within and north of T. 35 N which were the subject of the Adams Amendment, so prohibited by law from being restored to the Southern Utes.56 Case No. 46640 sought compensation for the lands disposed of between 1885 and 1938.57 Case No. 47564 sought compensation for 64,560 acres of land withdrawn in 1916 for naval oil reserves in Colorado, for which the stipulated compensation totaled $623,686.18.58 Case No. 47566 sought compensation (for unstated reasons) for 3,199,258 acres of the same lands dealt with by the 1911 case, which had been set aside for forest reserves. The compensation stipulated to was $803,826.48.59 The stipulations that settled these four cases, as well as two others which are not reported,60 are referred to as the "1950 consent judgments." The total compensation awarded, not including attorney fees, was around $31 million (according to the Supreme Court).61 The value of this judgment in 1998 dollars is approximately $857 million.62

The 1971 Supreme Court decision in Southern Ute Tribe was commenced in the Indian Claims Commission by the Southern Ute Tribe alone the very year after the 1950 consent judgments were entered, in 1951.63 The Utes argued that the United States had violated its fiduciary duty to the Tribe by disposing of 220,000 acres of land ceded to it by the federal government as "'free homesteads,'" although obligated by the Acts of 1880 and 1895 to sell the acreage for the Tribe's benefit.64 The Tribe also sought an accounting for the proceeds from the sale of 82,000 acres, which, it alleged, were required, under the same Acts, to be held for the Tribe's benefit.65 The government's defense was res judicata: because of the Tribe's entry into the 1950 consent judgments between the United States and the Confederated Bands of Utes (which included the Southern Utes), it was barred from bringing the 1951 claims.66

The Supreme Court held in favor of the government, stating that the Southern Utes had already been fully compensated for their loss.67 In an 8-1 decision authored by Justice Brennan, the Court quoted from the stipulation in Confederated Bands of Ute Indians, which stated:

[T]he judgment to be entered in this case is res judicata, not only as to the land described in Schedule 1, but, whether included therein or not, also as to any land formerly owned or claimed by the plaintiffs in western Colorado, ceded to defendant by the Act of June 15, 1880, and by the defendant during the aforesaid periods of time sold for cash, disposed of as free homesteads and set aside for public purposes [between 1910 and 1938].68

The Supreme Court examined whether the Utes had either withheld any lands from the 1880 cession, or acquired any land or interests in land subsequent to the Act of June 15, 1880 which were subsequently ceded, particularly given that they had continued to occupy Royce Area 617.69 The Utes maintained that there were such interests or rights for which they had not been compensated by virtue of the 1950 consent decrees-approximately 230,000 acres of land in Royce Area 617.70 The Supreme Court again disagreed, holding that no interest or right survived the 1880 cession, the subsequent improper disposition of which still remained to be compensated.71 The Court held that the 1950 consent judgments were res judicata as to compensation to the Utes for the taking of all property from the 1868 reservation which was "ceded to the defendant by the Act of June 15, 1880," and that there were no other cessions.72

The views expressed by Judge Skelton, the lone dissenting voice in the Court of Claims in Southern Ute Tribe or Band of Indians, appear to have strongly influenced the Supreme Court. In expressing his disagreement with the result reached by his court, Judge Skelton stated:

I cannot agree with the reasoning of the majority nor with the result they reach. In my opinion, the Indians in this case, along with other Southern Ute tribes, were paid $31,938,473.43 in 1950 for the identical land involved here, together with other lands. This was the largest judgment ever awarded by this court since it was established in 1855. The attorneys who represented the Indians in the recovery of this tremendous judgment received an attorney fee of $2,800,000. See Confederated Band of Ute Indians v. United States, 120 Ct. Cl. 609 (1951). As will be seen in the following pages, the same Indians and the same attorneys are before the court again in this case asking that they be paid again (twice) for the same land, and the opinion of the majority is going to allow them to get this double payment. This results, in my opinion, in a shocking giveaway of millions of dollars of public money of the United States, and I cannot agree to it.73

Judge Skelton then discussed the difficulty of assessing the particular lands that were the subject of the consent judgments:

The stipulation [which served as the basis for the 1950 consent judgments] went on to describe a "Schedule 1," which contained the legal descriptions of approximately 1,523,236.95 acres of land embraced by the stipulation, saying: "So far as the parties with diligence have been able to determine these descriptions represent all the land so disposed of and set aside." This Schedule 1 contains 338 pages of single-spaced, typewritten legal descriptions of land. A land expert would find it difficult, if not impossible, to make sense of this Schedule 1. Even if he were to analyze it, months of his time would be required in the process. When confronted with the schedule of lands pursuant to settling case no. 46640, the government only ran a spot check of the schedule, and concluded that while there were errors, it was impractical to continue the examination. Evidencing an obvious lack of reliance on the correctness and completeness of Schedule 1, the stipulation signed by both parties went on to state:

One searches in vain for a more clear, a more precise, a more final disposal and release of claims, than the one just quoted.74

Judge Skelton then analyzed whether the land from Royce Area 617 in Southwestern Colorado was included in the comprehensive language of the 1950 settlement, and concluded that it was.75 The Supreme Court adopted his analysis and conclusion, reversing the Court of Claims.76

The United States Supreme Court holding is all the more important in light of its recent decision in the coalbed methane gas (CBM) case.77 In that case, the Southern Utes went back to court again to claim ownership of CBM by virtue of their "ownership of the coal estate" underlying approximately 200,000 acres of patented land in Royce Area 617.78 The CBM case is important here only for its tie to the reserved water right question. In the CBM case, the district court held that the Tribe's title to the coal estate derives from the 1909 and 1910 Coal Lands Acts,79 by which the United States government reserved to itself the coal in lands subject to homesteading.80 The United States then putatively restored the coal estate to the Tribe by means of the 1938 restoration order. The United States could reserve the coal estate to itself in 1909-1910 because the land was in the public domain, however, which can only have been the case if the reservation had been extinguished. District Court Judge Babcock noted that:

The Supreme Court has left no doubt as to the meaning and effect of the 1880 Act. "The central feature of the Act of 1880 was the termination of tribal ownership in the reservation lands, and the limitation of Indian ownership to such lands as might be allotted in severalty to individual Indians."81